Case: 20-40350 Document: 00515772161 Page: 1 Date Filed: 03/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 9, 2021
No. 20-40350
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
David Arzon,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:11-CR-43-2
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
David Arzon pleaded guilty to conspiracy to possess with intent to
distribute five kilograms or more of cocaine hydrochloride, in violation of 21
U.S.C. § 846, 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. The district court
sentenced him to 135 months’ imprisonment and five years’ supervised
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-40350 Document: 00515772161 Page: 2 Date Filed: 03/09/2021
No. 20-40350
release. On appeal, Arzon raises three challenges to the district court’s
calculation of the Sentencing Guidelines range.
We review the district court’s legal interpretation of the Guidelines
de novo and its factual findings for clear error. United States v. Castillo, 779
F.3d 318, 321 (5th Cir. 2015). A factual finding is clearly erroneous only if,
based on the entirety of the evidence, we are “left with the definite and firm
conviction that a mistake has been made.” Id.
First, Arzon argues that the district court erred in permitting the
Government to withhold a motion for an additional, one-point reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(b). We review the
Government’s reasons for withholding the motion “only to determin[e]
whether the [G]overnment considered an interest within § 3E1.1.” United
States v. Halverson, 897 F.3d 645, 656 (5th Cir. 2018). At sentencing, the
Government declined to move for the one-point reduction because Arzon did
not truthfully admit his criminal conduct. And Arzon was a fugitive for eight
years. Both reasons are relevant considerations under § 3E1.1. See U.S.S.G.
§ 3E1.1, cmt. 1(A) & (D); see also, e.g., United States v. Chapa-Garza, 62 F.3d
118, 123 (5th Cir. 1995) (holding that a defendant had not clearly
demonstrated acceptance of responsibility where he was a fugitive for four
and a half years). Thus, the district court did not clearly err in permitting
the Government to withhold a motion for the additional, one-point
reduction.
Next, Arzon claims the district court erred in overruling his objection
to the PSR’s inclusion of a 2008 New York State DWI conviction. Arzon
bears the burden of showing that the information in the PSR about this DWI
conviction was “materially untrue, inaccurate or unreliable.” United States
v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). Although the record of Arzon’s
DWI conviction was lost in a fire, the probation officer verified the DWI
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No. 20-40350
conviction by procuring a Certificate of Disposition and National Crime
Information Center record detailing the offense; both documents bore
sufficient indicia of reliability. See U.S.S.G. § 6A1.3(a) (allowing a district
court to consider at sentencing any information that has sufficient indicia of
reliability to support its probable accuracy); see also N.Y. Crim. Proc.
Law § 60.60(1) (“A certificate issued by a criminal court, or the clerk
thereof, certifying that a judgment of conviction against a designated
defendant has been entered in such court, constitutes presumptive evidence
of the facts stated in such certificate.”). Moreover, Arzon failed to meet his
burden because he presented no competent rebuttal evidence at sentencing.
Accordingly, the district court did not clearly err in considering Arzon’s
DWI conviction when calculating his criminal history.
Finally, Arzon argues that the district court erred by not reducing his
offense level based on his role in the offense. Specifically, Arzon claims that
he was entitled to a mitigating role reduction under U.S.S.G. § 3B1.2.
Because Arzon seeks an adjustment to the base level of the conspiracy offense
with which he was charged, he “bears the burden of proving by a
preponderance of the evidence that the adjustment is warranted.” United
States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). Arzon has
failed to make that showing: He did not show the level of culpability of the
average participant in the conspiracy, and he did not show that he was
substantially less culpable than that participant. See United States v. Castro,
843 F.3d 608, 613 (5th Cir. 2016); U.S.S.G. § 3B1.2 cmt. 3(A). Thus, the
district court did not clearly err in refusing to grant the § 3B1.2 reduction.
We AFFIRM.
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